Daly v. Webster

56 F. 483 | 2d Cir. | 1892

PER CURIAM.

This is a suit to enjoin the defendants from producing a portion of a' play entitled “After Dark.” and written by one Dion Boucicault, on tie ground that such portion is a colorable imita lion of a scene in a copyrighted play written by the complainant, and entitled “Under the Gaslight.”

The law regulating copyrights requires, as a condition indispensable to its creation, and to the existence of any literary property in a. published work, that there he deposited before publication, in the proper oilier', “a printed copy of the title of the book,” etc. The circuit court, in the case at bar, held that that condition had not been complied with; there being, as it found, a material variance between the registered and the published title, whereby the substantial identity between the two tilles is doubtful, and might deceive the public into the belief that they refer to different publications.

The title, as filed, was:

UNDER THE GASLIGHT,

A Romantic Panorama of flic Streets and Homes of New York.

By

AUGUSTIN DALY,

Author of “Leah, the Forsaken,” “Griffith Gaunt,” “Taming a Butterfly,” etc.

The title, as published, was:

UNDER THE GASLIGHT,

A Totally Original and Picturesque Drama of Life and Love in Those Times, in Five Acts.

By AUGUSTIN DALY,

Author of “Leah, the Forsaken.” Griffith Gaunt,” “Taming a Butterfly,” etc., etc.

That there is a difference between the litle pages is plain, but we are unable to assent to the proposition that there is a variance in (lie title. What is the title of a book' which the statute requires tin* author to lile? It is the name which is given to the book, and by which it is designated and is to be known; the name by which, it is to he called in the speech of the people; by which, it is to he inquired for and sold. It may also include a subtitle, but it does not include' a description of the book upon the title page. Thus, the title, “Webster’s Dictionary,” would be the title of the book, although a description of the book, as “An American Dictionary of the English Language,” should follow; and if, in place of “American,” tlie words “United States” should be substituted, there would be no variance. Tried by Ibis rule, we find here no variance in the title. The name of the play, the title to be given to it by Ihe public, and by those who may buy and sell it, is “Under the Gaslight;” the words ‘immediately following, between ihe commas, are a mere description of the general character of the work, apparently not intended to be, and not in fact actually, used as any part of tbe title. Tbe very arrangement of the words by tbe printer, and tbe choice of type, tend to show that tbe author did not mean them for a subtitle, and there is nothing in the record to constrain us to give them any such character.

In support of the decree of the court below, appellees contended that there was no proof that a copy of the book was delivered, as the statute required, within three months after publication, to the clerk of the district court for the southern district of Yew York, where the complainant then resided. The deputy clerk of that court produced from the said clerk’s office a daybook kept by the copyright clerk. The entries were in the handwriting of such copyright clerk, who was dead. In his lifetime he had charge of the copyright desk, receiving applications for copyrights, preparing the certificates of copyrights, filing books and papers, and forwarding copyright matter to Washington. The book was a book of original entry, kept in tbe regular course of business, daily, as articles were presented. There were entered in the book tbe titles of the copyrights; when tendered; the nature of the articles upon which the copyrights were sought; the dates of the applications for them; and the times when the articles themselves were deposited. It was the duty of the clerk who kept the daybook, (apparently, a duty imposed upon him, not by any express statute or order of court, but by tbe directions of his superior officers, and the rules and practice of the office,) on receipt of a work deposited under the copyright law, to make an entry in the last column of the book of tbe receipt of the deposit. An entry appeared in this book, in bis handwriting, showing the deposit of “Under the Gaslight” on August 1, 1867, which was within the three months. This record, kept by a person “in the discharge of a public duty,” was competent evidence of the transaction which was therein stated to have occurred, (Evanston v. Gunn, 99 U. S. 660; 1 Greenl. Ev. § 483;) and, in the absence of any proof to the contrary, it was sufficient evidence of tlie deposit of “Under the Gaslight,” as alleged.

Upon the main point of the case, namely, whether the combination or series of dramatic evenir», (apart from the dialogue,) which makes up the particular scene or portion of the play claimed to be infringed, is a dramatic composition, and as sucli entitled to protection under the copyright laws, it i»s necessary to add but little to the exhaustive opinion of Judge Blatchford, reported in Daly v. Palmer, 6 Blatchf. 256. The same .scene in the same play is elaborately discussed by him, and in his conclusion, that it is a dramatic composition, we concur. In plays of this class the series of events is the only composition of any importance. The dialogue is unimportant, and, as -a work' of art, trivial. The effort of the composer is directed to arranging for the stage a series of events so realistically presented, and so worked out by the display of feeling or earnestness on the part of the actors, as to produce a corresponding emotion in the audience. Such a composition, though its success is largely dependent upon what is seen, irre-spcctive of the dialogue, is dramatic. It tells -a story which is quite as intelligible to tlie spectator as if it bad been presented ;o him in a written narrative. Tbe mere exhibition of mechanical appliances to represent incidents is not to be included within this classification. There must be a series of events, dramatically represented, in a certain sequence or order. In other words, there must be a “composition,” i. e. a work invented and set in order, — a work of various parts and characters, which, when put upon the stage, is developed by a series of circumstances.

The particular composition which is the subject of this action may he thus briefly stated: An individual is put in peril of his life by being placed by another upon a track over which a railroad train is momentarily expected to arrive, and so fastened that be cannot move from his dangerous position. From this peril he is rescued by a third person, who, surmounting obstacles,’ succeeds, at the last moment, in releasing him. With very little dialogue, and by the representation of successive incidents, this scene is displayed before the audience; and to its presentation, as the author conceived it, the important incidents grouped in the sequence he devised are essential. Together, they make up his story, or “dramatic composition.” In their presentation individually, and without such grouping, there would be no such composition.

It is plain that the author of such a work, where various incidents, in themselves common literary property,' are grouped to form a, particular story, must be confined, in his claim to copyright, closely to the story he has thus composed, and that another author, who, by materially varying the incidents, materially changes the story, should not be held to be an infringer. To illustrate: Tn the case at: bar the defendants at one time represented their play with no change in its material elements, except that the imperiled person was suspended over the track, a foot or two from the ground, instead of being fastened direcilv to the track ilself. Manifestly, the grouped incidents, as thus altered, tell the same story as in the complainant’s play. On another occasion, however, the' defendants’ play was so modified that (he imperiled person was placed upon the track, so stupefied with some drug a.? to be unable intelligently to direct Ms own movements, and so en-vironed (the scene is laid in a narrow tunnel) that it seemed reasonably certain he would be in his place of peril when the train arrived. Bo far, the change of incident, made no material change in the story; hut he was saved from death, without the aid of any third person, — at one Lime, by staggering off the rails in time; at another, by striking inadvertently against the operating arm of a switch, which moved, and thus side-tracked the train. This grouping of incidents, dispensing, as it does, entirely with the rescuer, whose efforts to aid, and Whose struggles to overcome the obstacles in his (or her) way,, are an important part of the complainant's composition, tells a, substantially different story. More-ovtu*. in all except the rescue by a third person, the complainant was not the first to conceive the story. Of course, in mere peril and rescue, — peril which. the imperiled person is helpless to avert, rescue at the last moment by exertion against obstacles, — there was nothing which any one, in this age of the world, could claim as his own. What the complainant contends was his own conception was the introducing of the moving railroad train as the source of peril, and confinement to its track as a method of assassination. But before he copyrighted his play there had been published in a monthly magazine (the Galaxy) a story entitled “Gap-tain Tom’s Fright.” It differs entirely from the complainant’s play, except that it contains a “railroad scene,” in which a person is tied upon a railroad track so as to be in apparent peril of his life from any approaching train. From this peril he is rescued by the circumstance, unexplained and unexpected, that a switch had been turned so that the train, which did come, passed him, not on the straight track, but on a cut-off. Such incidents of peril from railroad trains, and rescue therefrom, being common literary property, (it does not appear that “Captain Tom’s Fright” was copyrighted,) it is apparent that the complainant’s composition is novel only by reason of the introduction of the rescuer, whose presence is therefore so essential to the “dramatic composition” that a representation which dispenses with his presence would not be an infringement.

The performances of the defendants’ play with the scene unchanged, (although such performances were had ’after the suit was begun,) and the performance in Philadelphia, before suit, with the immaterial change above referred to, — of suspending the imperiled person above the track, — sufficiently indicate an intention on the part of the defendants to infringe, complainant’s copyright, unless restrained by a decree of the court. The decree of the circuit court is therefore reversed, and the cause remanded, with instructions to enter the usual decree for account and perpetual injunction. Costs of both courts to appellant.